TAYLOR V THE DEPARTMENT OF CORRECTIONS SC 35/2009
S 134 does not import a right to a hearing prior to an adjudicator's decision to refer a disciplinary charge to a Visiting Justice, and an adjudicator may consider prior disciplinary breaches when forming the requisite opinion; s 139 does not require a different construction.
Source-derived case information.
- Citation
- SC 35/2009
- Parties
- Applicant: Arthur William Taylor; Respondent: The Department of Corrections
- Court
- Supreme Court
- Jurisdiction
- New Zealand
- Judgment Date
- 24 July 2009
- Procedural Posture
- Judicial Review / Application for Leave to Appeal to Supreme Court
- Outcome
- application for leave to appeal dismissed
- Legal Topics
- Judicial Review, Procedural Fairness, Prison Disciplinary Procedures, Interpretation of S 134 and S 139 Corrections Act 2004
Source-derived case record
Summary, issues, holding and outcome
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Parties
Arthur William Taylor
Applicant
The Department of Corrections
Respondent
Procedural Posture
Judicial Review / Application for Leave to Appeal to Supreme Court
Legal Issues
- 1 Whether s 134 of the Corrections Act 2004 requires a hearing before an adjudicator may refer a disciplinary charge to a Visiting Justice
- 2 Whether an adjudicator may take into account previous disciplinary breaches when deciding to refer under s 134
- 3 Whether s 139 compels a different construction of s 134
Ratio Decidendi
S 134 does not import a right to a hearing prior to an adjudicator's decision to refer a disciplinary charge to a Visiting Justice, and an adjudicator may consider prior disciplinary breaches when forming the requisite opinion; s 139 does not require a different construction.
Court Disposition
application for leave to appeal dismissed
Orders
- Application for leave to appeal dismissed.
Full Case Text
Judgment text and source record
1 paragraphs
TAYLOR V THE DEPARTMENT OF CORRECTIONS SC 35/2009 24 July 2009IN THE SUPREME COURT OF NEW ZEALAND SC 35/2009 [2009] NZSC 80BETWEEN ARTHUR WILLIAM TAYLOR Applicant AND THE DEPARTMENT OF CORRECTIONS Respondent Court: Blanchard, McGrath and Wilson JJ Counsel: C J Tennet for Applicant V E Casey for Respondent Judgment: 24 July 2009JUDGMENT OF THE COURT The application for leave to appeal is dismissed. REASONS[1] The application relates to judicial review of a decision of an adjudicator under s 134 of the Corrections Act 2004 to refer a disciplinary charge to a Visiting Justice. The Court of Appeal reversed the High Court's determination that the adjudicator's decision was invalid. [2] The proposed appeal has no prospect of success. With the greatest of respect to the High Court Judge, we cannot see how a right to a hearing prior to an adjudicator's decision to refer can be read into s 134. The adjudicator is not called upon to decide on guilt or penalty but merely to form an opinion on the apparent seriousness of the prisoner's conduct and on the possible penalty if and when abreach of discipline is established after a hearing. Nothing in s 139 requires a different reading of s 134 so as to import the need for a hearing. [3] It was also perfectly proper for the adjudicator to take account of previous disciplinary breaches by the applicant. "Conduct" naturally is judged in part in light of such breaches when a penalty comes to be imposed by the Visiting Justice if guilt is proven. The argument for the appellant would, if accepted, lead to the absurd situation that a repetition of offending which in isolation would not justify reference to a Visiting Justice, and a higher penalty, might not be able to be referred under s 134. Yet, if there were a reference, the higher penalty might well be appropriate should there be a finding of guilt. That would be an unprincipled outcome.Solicitors: Crown Law Office, Wellington